United States District Court, S.D. Georgia
GODBEY WOOD, UNITED STATES DISTRICT COURT CHIEF JUDGE
John Smallwood's motion to disqualify Defendants'
attorney, Huey Spearman, will be DENIED, but
Spearman must file Defendants' waiver of his potential
conflict of interest as to cross-examination of John's
wife Sheila ("Sheila"). Dkt. No. 87.
Court assumes the truth of the facts Smallwood's motion
alleges. Sheila divorced from her ex-husband on October 16,
2006, pursuant to an order prepared by Spearman, who was her
attorney. Dkt. No. 87-1. While representing Sheila in the
divorce, "Spearman learned confidential information
about [her] finances, relationships, children, character,
education level, job history, and sexual history." Dkt.
No. 87 at 7.
now represents Defendants, who are Smallwood's former
employers, in this race-discrimination suit. That suit was
filed October 28, 2014. Dkt. No. 1. Sheila will be a
substantive witness in this case. Dkt. No. 87 at 2. Smallwood
alleges, among other things, that Defendants fired Sheila
after one of them called her a racial epithet. See
Smallwood v. T&A Farms, No. 5:14-CV-87, 2017 WL
150504, at *4 (S.D. Ga. Jan. 13, 2017). On January 13, 2017,
this Court denied Defendants' motion for summary
judgment. Dkt. No. 82.
filed the present motion on March 15, 2017. Dkt. No. 87. His
attorneys just learned of Spearman's prior representation
of Sheila, as Spearman did not disclose it to them,
Defendants, or the Court, and Sheila herself did not know she
could seek his disqualification. Id. at 2-3.
Spearman responded by claiming he had no idea Sheila (whose
name has changed) was his former client until the present
motion. Dkt. No. 88 at 2. He denies knowing or remembering
any confidential information about her that could be used
here. Id. at 3.
to disqualify are governed by this Court's local rules
and federal common law. Hermann v. GutterGuard,
Inc., 199 F.App'x 745, 752 (11th Cir. 2006) (per
curiam); see also Schlumberqer Techs., Inc. v.
Wiley, 113 F.3d 1553, 1561 (11th Cir. 1997) ("The
court must clearly identify a specific Rule . . . applicable
to the relevant jurisdiction and must conclude that the
attorney violated that rule . . . ."). Local Rule
83.5(d) incorporates the Georgia Rules of Professional
doubts as to the existence of a violation of the rules should
be resolved in favor of disqualification." Jones v.
InfoCure Corp., No. 1:01CV2845, 2003 WL 22149656, at *2
(N.D.Ga. May 13, 2003) (citation omitted) (alteration in
original). But the movant "bears the burden of proving
the grounds for disqualification, " and "the mere
appearance of impropriety is no longer grounds."
Hermann, 199 F.App'x at 752; Herrmann v.
GutterGuard, Inc., No. 1:04-CV-0365, 2005 WL 6076877, at
*8 (N.D.Ga. Dec. 21, 2005) (Carnes, J.). Disqualification is
disfavored, as it is "a harsh sanction, often working
substantial hardship on the client, especially in cases . . .
where extensive discovery and trial preparation have been
completed." Norton v. Tallahassee Memorial
Hosp., 689 F.2d 938, 941 n.4 (11th Cir. 1982). It
"interferes with this choice of counsel and causes
expense and delay that are costly both to the client and the
administration of justice." Herrmann, 2005 WL
6076877 at *8. Hence, it is granted only
"sparingly." Norton, 689 F.2d at n.4.
motion will be denied. He raises two Georgia Rules: 1.6 and
1.9. See generally Dkt. No. 87. Neither requires
Spearman's disqualification, but Rule 1.6 does require
Defendants' waiver of his use of confidential information
in cross-examining Sheila.
RULE 1.6 REQUIRES DEFENDANTS' WAIVER.
1.6 does not require disqualification here, but rather, a
waiver from Defendants. Rule 1.6(a) requires lawyers to
"maintain in confidence all information gained in the
professional relationship with a client." Smallwood
argues that Spearman would violate Rule 1.6 by
cross-examining Sheila, especially as to her credibility.
Dkt. No. 87 at 5. This is certainly "a potential
conflict of interest." Liqhtbourne v. Duqqer,
829 F.2d 1012, 1023 (11th Cir. 1987) (per curiam) ("An
attorney who cross-examines a former client inherently
encounters divided loyalties."); see also Porter v.
Wainwriqht, 805 F.2d 930, 939 (11th Cir. 1986)
("[Complainant] asserts that [his attorney] was forced
to choose between discrediting his former client through
information learned in confidence, or foregoing vigorous
cross-examination .... If true, these assertions would
suffice to demonstrate an actual conflict of
interest."). But Defendants can retain Spearman even
knowing that he "is precluded from using some
potentially critical information" in cross-examining
Sheila. Herron v. Chisolm, No. CV412-041, 2012 WL
6645643, at *5 (S.D. Ga. Dec. 19, 2012). Such a waiver
"must be an informed decision, " so "the Court
will require [Spearman] to bring this matter to
[Defendants' ] attention and have them state in writing
that they understand and accept the risk." Id.
RULE 1.9 DOES NOT ...